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Lasting Powers of Attorney – The role of the ATTORNEY – UK

Have you been asked to be an Attorney and are you wondering what this really means? Are you concerned that you don’t know what to do?

This article explains your role and answers some key questions.

Lets start with what is expected of you as an Attorney.

FAQ’s

1. What does an Attorney have to do?

An Attorney is someone who has the authority to make decisions and act someone’s behalf.

So, you would be expected to make decisions and carry out tasks on behalf of the person who signed the Lasting Power of Attorney.

The following information should give you a good understanding of purpose of an LPA, but first, a little more background.

2. Who can be an Attorney?

Anyone over 18, you can be a friend or relative and people frequently ask their spouse to do it. Normally it is someone they trust and who knows them reasonably well. You can choose a professional attorney who will be paid for their service.

3. When do I actually have to do something? When do I become the attorney?

If the person with the LPA becomes too ill to look after their own affairs, then you as the attorney can start to make decisions and manage their affairs for them.

We call this losing capacity. You lose capacity if you are unable to make decisions.

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4. How can I tell if someone has lost capacity?

Often medical staff will be the first to declare that someone has lost capacity. But you should still consider for yourself whether you think that they are able to make a decision. The law gives guidance on decision making:

Are they unable to understand information relevant to the decision?
Can they retain that information?
Can they weight that information as part of the process of making a decision?
Can they communicate it (whether by talking, using sign language or any other means)?
It may be that the incapacity is only temporary, but you may still be required to make decisions for them if they are incapacitated for a short time.

There is more information in Part 3 of the Mental Capacity Act Please bear in mind that the reason for the incapacity could be physical or mental, it could be due to accident, illness or for another reason. What is important is whether they are “incapacitated”.

If you are unsure, you must get further advice. Talk to medical professionals who are treating the person who made the LPA.

Please note that it does not matter if the person is making unwise or unexpected decisions, you may not agree with them but that doesn’t mean they lack capacity. Remember, you can only act when they are no longer able to make decisions.

As an attorney you should try to help the person who signed the LPA to make their own decisions if possible.

Useful information on the capacity to make decisions can be found in the Mental Capacity Act Part 3

5. What decisions can I make? What does “manage affairs” mean?

The first thing you should do is look at the LPA document. There are two types and you may be an attorney under one or both types of LPA.

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Lasting Power of Attorney – Health and Wellbeing or,

If you are an Attorney under a Health and Wellbeing LPA you may be asked to make decisions about various aspects of the persons personal life. For example, you could be asked to make decisions on what medical treatment they receive or where they are to live, even what they eat and wear. You will only do this if the donor has lost the capacity (ability) to make the decisions for themselves.

If you are and Attorney under a Property and Financial Affairs LPA you can make decisions about money and property, you can pay bills, collect benefits and even sell the persons home for them. You can use authority this at any time, the person making the LPA does not need to have lost capacity.

 

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